Wednesday, May 19, 2004

A Dissenting Opinion . . . By Press Release

Judge Wolin, of the District of New Jersey, issued this press release today. Here's a portion:

"A panel of the Third Circuit Court of Appeals has decided by a two-to-one vote that my joint administration of three major chapter 11 asbestos cases should be terminated. These cases were assigned to me by former Chief Judge of the Third Circuit Court of Appeals Edward Becker. My responsibility was to take an intractable litigation problem cloaked with a sense of urgency and to dispose of it with dispatch.

. . .

The Court of Appeals gave lip service approval to the concept of experts employed to advise a district judge, but held that such confidential advice necessarily crosses the line into extra-judicial or ex parte knowledge. It is unclear how expert advisors are to be used, if at all, following the Court of Appeals' opinion in this case. The dissenting opinion criticized the majority for excusing the delay of almost two years before an objection was filed to my management of these complex cases. The majority refused to recognize the significance of the fact that attorneys representing committees of creditors and indeed the entire asbestos bar knew long ago of the supposed conflicts of my advisors.

The Court of Appeals' focus on complete transparency and actual notice to the exclusion of other considerations is an unfortunate development in the jurisprudence of complex litigation. These principles were developed in simpler times and for cases with but a few parties. Here, where the parties number in the hundreds of thousands, the decision in this case was profoundly impractical. I am convinced that it will work to the detriment of legitimate creditors Â injured persons, commercial creditors, and debtors Â willing to play by the rules and avoid the scorched earth tactics of a few, distressed-debt traders. The trust the judiciary has earned over centuries of honorable service is not wasted by the case management techniques I put in place. On the contrary, that trust is put to its highest use to solve one of our society's most difficult and intractable problems."

The only explanation for this press release is uncontrollablele hubris. A district judge has a right to do this only in the strictest sense - no lower court judge should be recurring to the press to critize a superior court about an active case. Now, the case will go forward without the Third Circuit having the last word. Like it or not, the Third Circuit answer is the right answer for a district court, at least until another appellate panel says otherwise. Call it a charade or a noble lie, that's how we do things in this country. Judge Wolin seems to have forgotten this.

Ironically, Wolin has vindicated the Third Circuit's decision - this is clearly a man too passionate about covering his behind to see the case objectively. Want proof of his motives? Check out this portion:

"The Court of Appeals, after a full examination of the record has found that I did nothing wrong, unethical, or biased. Moreover, their review has not revealed the slightest hint of any actual bias or partisanship by me. On the contrary, they found that throughout my stewardship over these asbestos cases, I exhibited all of the judicial qualities, ethical conduct and characteristics emblematic of the most experienced, competent and distinguished Article III jurist."

Apparently he forgot to add "But I flatter myself" at the end. Must be scrivener's error.

Lastly, Judge Wolin could use a little brush up on the Canons of Judicial Ethics. Canon 3A(4)requires that "a judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding."

Can anyone name another judge who had this section thrown in his face recently? Answer: Thomas Penfield Jackson in the Microsoft recusal. You're in good company, Judge Wolin.